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August 20, 2018

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The 5 W's of Intellectual Property: Trademarks

June 16, 2017


What (is a trademark)?


A trademark can be nearly anything that allows consumers to tell which company is providing the goods or services they are paying for. Since there are many ways to communicate to consumers who is providing the goods or services, there are many types of marks. Marks may be words, slogans, jingles, or logos; and in some instances, specific colors or themes (referred to as “trade dress”) have been claimed as marks by businesses. 


Accurately speaking, the term “trademark” refers to marks that identify the source of goods, while the term “service mark” is meant to be used in connection with services. However, people often use the word “trademark” in both the context of goods and services, and it has become generally acceptable to use in either situation.

Who (do trademarks protect)?


Trademark protection is two-fold. On one side, trademarks are intended to protect consumers. When a consumer sees a trademark on a bag of potato chips, for example, the consumer begins to associate the mark with the product and the company that made the product. If the company behind the mark has a reputation of producing delicious, high-quality snacks, then the consumer can buy the chips with reasonable confidence that they will also be delicious. Trademarks, to some extent, give consumers the ability to differentiate good products from the bad ones.


The flip side of trademarks is the protection it provides to businesses. Businesses work hard to build goodwill with consumers, and a business can preserve this goodwill by ensuring that competing businesses do not put products into the marketplace that could be mistaken as coming from the business. This confusion can be minimized through the use of a trademark that indicates to the the consumer which business produced which product. By tying customer goodwill to a trademark, a business can increase customer satisfaction, which will then in turn result in higher sales.


Why (should I register my mark)?


There are many, many benefits to registering a mark with the United States Patent and Trademark Office. One of the most compelling reasons to register is that it acts as notice to businesses across the nation that you claim ownership in a mark, and it gives you the ability to prevent competitors from using the mark nationwide. After registration, you may proudly display the registered trademark symbol (®) beside your mark to give your products or services more cache and to indicate to competitors that you are serious about protecting your mark. Federal registration also gives you the option to use the federal court system in lawsuits against infringers, as well as the ability to collect statutory damages for infringement that would otherwise be unavailable.

Where (and how* do I register)?


For nationwide protection, you should register with the USPTO. This is most easily accomplished by filing an application online. The fee for online filing with either be $225 or $275, depending on the detail required to describe your goods or services, and the type of application that is filed. Alternatively, you can fill out and mail your application to the USPTO with $325 filing fee.


Filing an application with the USPTO without first conducting proper research is highly discouraged. There are many factors that could affect the likelihood of having your mark approved and the scope of the rights you will be granted after registration. A little bit of investigation before filing could save you a lot of headache down the road. For this reason, you should consult with your attorney before moving forward with registration.

When (should I register)?


If you are seeking nationwide protection, you are usually better off by filing early. A competitor’s use or registration of a mark that is confusingly similar to yours could affect your ability to register and use your own mark. Therefore, it is recommended that you file as early as possible to minimize the risk of your rights becoming limited through your competitor’s use or registration of a similar mark.


However, the USPTO does require that you use your mark in “interstate commerce” before your mark will be officially registered. As a result, you must decide whether it is best for you to wait until you have met this interstate commerce requirement before submitting your application (at the risk of your rights becoming limited), or, alternatively, to secure your priority over competitors by filing an application before meeting this requirement (resulting in an additional fee once the interstate commerce requirement is met).



About the Author: 


David "Tyler" Bennett is a business and intellectual property attorney, and he is a partner at Verhagen | Bennett LLP.  To learn more about David, please click here.


For questions or comments about this post, please email David directly at: David@VerhagenBennett.com


To make suggestions about future posts, please email: Info@VerhagenBennett.com



© 2017 David T. Bennett — This article is for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

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